Sometime today, June 12, Nathalie Morin will appear in a Saudi court in Dammam, in order to set a trial date on child abduction charges, following incidents which occurred a few days ago. On June 6, Nathalie Morin was discovered leaving her home with her children. She reportedly was attempting to abduct them out of Saudi Arabia and eventually to Canada with the aid of 2 Saudi feminist activists, Wajeha Al-Huwaider, and Fawzia Layouni. Nathalie's mother, and the 2 activists claim they were only helping Nathalie to get food and provisions for her and the children after her husband, Said Al-Shahrani, left the family locked in their home for days while he attended a cousin's wedding in his city of origin, Jubail. All the adults involved are subject to Saudi law. (See previous post)
As regards the children, there are 2 sets of laws that govern this case. The first, and the one that has predominated all along, is Saudi family law, or the moudwana, which, as in other Muslim countries, is based on Sharia law. The second is the Hague Convention on the International Rights of the Child. According to Saudi family law, the children are in the custody of the father. When the children are very young, the mother may be allowed to raise them, but custody, that is, legal guardianship and decision-making about the children, remains with the father. Sometimes, in preference to the mother being allowed to raise them, very young children would be raised by the paternal grandmother. This is a decision for the father to make.
Members States of the Organisation
Non-Member States of the Organisation
When there is an issue of taking children across international borders, the Hague Convention of the Civil Aspects of International Child Abduction (enforced since 1983) predominates. This is primarily true where both countries have signed and ratified the Hague Abduction Convention, but also is invoked when they have not. Muslim countries have not ratified the Convention, and where they have signed, have only done so with the proviso that the aspects contravening Sharia family law do not apply.
This is one of the reasons that certain parental child abduction cases--involving usually a father taking the children from a Western country to a Muslim one--make headlines, whereas they are in the minority of parental child abduction cases. Most often in these cases there has been a marital breakdown, divorce, and the Western court favoured the mother for custody, as most often happens generally in custody cases in the West. Where joint custody is awarded, all major decisions about the children, even including schooling for example, require the consent of both parents.
For most Canadians, the Hague Abduction Convention only comes in to play when they apply for a passport for their child. Such a passport (children are no longer on a parental passport) requires legal documentation of both parents, and of custody agreements where there has been legal separation or divorce. Where one parent has relinquished all rights, this too must be legally documented.
Some Canadian parents live through the agony of one parent abducting the child, usually not returning after a legal visit. Sometimes, as in a recent case in the news, the parent has taken the child to a different province. Often, the US is the international border crossed, as in the famous case of Canadian Olympian Myriam Bédard, who took her daughter across the Canada-US border to live with her and her new love interest. As Canada and the US are both signatories to the Hague Abduction Convention, Bédard was arrested on an international warrant, and she and her daughter returned to Quebec. Bédard was convicted of violating her child custody agreement, and sentenced to a conditional discharge and 2 years probation.
The essence of the Hague Abduction Convention is that the child is to be immediately returned to the country of usual residence, and the legal norms of the custody agreement already in place are to be respected until a court in the home country decides otherwise. The first step is a return to the status quo. After that, the family courts in the home country decide what new provisions should apply, and the criminal courts decide on the abduction charges.
In the case of Nathalie Morin, even though Canada enforces the Hague Abduction Convention, Saudi Arabia is not a signatory. Even if both countries were signatories, she and the children habitually reside in Saudi Arabia--so the status quo would apply. That is, the children would be returned to, or remain in, Saudi Arabia and Saudi family law would apply. Her husband would have custody of the children even after divorce, and would determine what contact, if any, she would have with them. In the case of a divorce, Morin would most likely not have the legal right to remain in Saudi Arabia, as she would no longer have a spousal iqama or visa.
As Saudi Arabia is not a signatory to the Hague Abduction Convention, and Morin is in Saudi Arabia, its family law applies in this case, and its criminal laws apply regarding child abduction. This means that the children's guardian continues to be their father. Because of the Saudi interpretation of the mahrem system, Nathalie's husband, Said Al-Shahrani, continues to be her guardian as well. If they were to divorce, she would not have custody of the children, and not have the legal right to live in the country or visit them--unless her then former husband agreed.
[2009-Johanne Durocher, the mother of Nathalie Morin, a Quebecker kept against her will in Saudi Arabia with her 3 children, deplores the analysis made by Canadian consular officials, who consider her daughter's situation as a "family question in the private domain".]
Despite the efforts of Nathalie's mother, Johanne Durocher, there is little that the Canadian government can do in this case, beyond mediation attempts already made by the Canadian Embassy, and moral support for a Canadian in legal difficulty abroad. Even the question of the husband's alleged abuses has not been leverage, either in law or in popular support. Part of the reason is that the abuse hasn't been proven, and there is suspicion that it is exaggerated to achieve the aim of bringing the children and Nathalie to Canada. Another part of the reason is that the abuse in itself would not change custody or residency laws.
Since the events of June 6, and particularly due to the efforts of Nathalie's mother, Johanne Durocher, there is increasing news coverage in the West of this latest turn in Nathalie Morin's case. The article below is one example. Note that Johanne Durocher refers to the cost of bringing Nathalie and the 3 children to Canada being $100,000 each. She is alluding to paid professional kidnappers, often former military men, who undertake to go to the country where the children are and abduct them, or re-abduct them when the children have been removed from their home country to another.
These professional services are expensive, rarely successful, and illegal. Moreover, child experts agree that both abduction and re-abduction are traumatizing to the children. The usual advice is to follow the best interests of the child, which is to leave them where they are, and avoid further psychological trauma. The psychologically traumatized parent must work on a healing process.
Most often, there is the hope that once the child is legally an adult, they will be free to seek out their parent and are likely to do so. Here, the Saudi interpretation of the mahrem system comes into play again. Whereas in other Muslim majority countries both sons and daughters become legal adults, often at the age of 18, in Saudi Arabia daughters do not become legal adults, in the sense that they are always required to have a legal male guardian--father, husband, brother, adult son, other responsible male family member--whose consent would be required to leave the country or to meet with the biological mother.
As stated in the previous post, sorting the details of this case is particularly difficult due to a number of confounds. However, for sure, Nathalie Morin, and her children with her husband Said Al-Shahrani, are subject to Saudi law. Hopefully there will be the happiest resolution possible for all family members, and particularly its youngest, most vulnerable ones.
‘Terrified’ Quebec mom faces Saudi court
Published On Thu Jun 09 2011
Nathalie Morin is a long way from home with the odds stacked against her.
The Quebec woman’s efforts to bring her family to Canada may have taken a drastic step backwards after she was detained by police in Saudi Arabia this week and told to face a court hearing on Sunday, accused of trying to kidnap her three children.
Morin, 26, has been stuck in Dammam, about 500 kilometres from the Saudi capital of Riyadh, since 2006, when she last visited Canada alone. Under Saudi law, she is not allowed to leave home with her children without her husband’s permission.
Johanne Durocher, Morin’s mother, said in an interview from Montreal Thursday that her daughter was detained by police after trying to take her children shopping while her husband was out of town.
She said Morin is frustrated and “terrified” to face this weekend’s tribunal. But she said communications problems have made it difficult to learn specific details of her daughter‘s case.
“My girl, she is very afraid,” Durocher told the Star. “She is terrified.”
She said Morin had already been left in her apartment with her children for two days while her husband, Saeed Al Shahrani, travelled to his hometown for a week-long visit.
On Monday, she said the family was running low on food and water, so Durocher contacted a Saudi journalist and feminist, Wajeha Al Huwaider, to take her shopping.
As they were leaving, she said Shahrani was waiting with police outside.
Durocher claims Shahrani had bugged the apartment and alerted police when she attempted to leave about 8:30 p.m. with her children, aged 8, 4 and 2.
Morin was sent back to the apartment, but Huwaider was questioned for two hours by police, she explained.
Durocher said police returned about 11 p.m. “and took my girl to the police station.” Morin was returned home two hours later, told she must face a court on Sunday to set a date for a trial.
If found guilty of trying to kidnap her children, Morin could face any number of penalties, said Ali Alyami, founder and executive director of Washington’s Center for Democracy and Human Rights in Saudi Arabia.
“There is no codified rule of law in Saudi Arabia,” he explained. “Shariah law is subject to interpretation by a judge.
Alyami said the case smacks of “entrapment.”
“One way to get rid of her and keep the children is by accusing her of trying to kidnap them,” he said. “In Saudi Arabia, children are property, just like the wife. They are the property of the father.”
In a video from earlier this year, Morin said she and her children are confined to an apartment without a key of her own to come and go. She said they have been subjected to “physical abuse and psychological abuse.”
In 2009, Deepak Obhrai, parliamentary secretary to then-Foreign Affairs Minister Lawrence Cannon, said Morin’s abuse allegations had been probed by the Saudi Arabia Human Rights Commission and “found not to be credible.”
Durocher said Thursday that her daughter has tried to sponsor Shahrani to immigrate to Canada, but a visa has not been approved. She said all three children already hold Canadian passports.
Durocher said that if she could afford it, she would have already arranged for her daughter to escape with the children. But she said it would cost $100,000 each to get them out.
John Babcock, spokesperson for Minister of State Diane Ablonczy, said in an email from Ottawa Thursday that Canada’s involvement in the matter is limited by Saudi Arabia’s laws.
“This is a very complex family dispute with no easy solution,” he wrote. “This case has been raised by the former minister of foreign affairs and the current government House leader in their meetings with Saudi officials.
“We are bound by both Saudi law and the Hague Convention on International Child Abduction, under which the children cannot leave without the consent of both parents.
“Our government has twice facilitated Ms. Morin’s return to Canada, and we stand ready to facilitate her return again, but custody of the children must be resolved before we can facilitate their departure from Saudi Arabia.”
Shahrani disputes his wife claims.
“How can my wife be the victim of any torture or detention when she is currently learning Arabic at a specialized society and speaks with her mother on the phone daily?” he told the Saudi daily Al-Watan last month.
“Whether or not I allow my children to leave Saudi Arabia is a matter which concerns both myself and my wife only,” he said. “Besides, I am entitled to keep my children in my custody according to Shariah, and I have not prevented my wife from staying with them.”
Your comments, thoughts, impressions?
Saudi Activists Wajeha Al-Huwaider and Fawzia Layouni Detained for Attempting to Help Canadian Nathalie Morin Flee Saudi Arabia with her 3 Children